Molleur v. Molleur, 11–042.

Docket NºNo. 11–042.
Citation2012 VT 16, 44 A.3d 763
Case DateMarch 09, 2012
CourtUnited States State Supreme Court of Vermont

44 A.3d 763
2012 VT 16


No. 11–042.

Supreme Court of Vermont.

March 9, 2012.

[44 A.3d 764]

Kerry B. DeWolfe of Rubin, Kidney, Myer & DeWolfe, Barre, for Plaintiff–Appellant.

[44 A.3d 765]

Norman R. Blais and Suzanne R. Brown, Burlington, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON and BURGESS, JJ., and KUPERSMITH, Supr. J., Specially Assigned.


¶ 1. Husband appeals the property and maintenance components of a divorce order issued by the family division of the superior court. We affirm in all respects, except that we remand the matter for the court to amend the maintenance award's automatic inflation-adjustment provision.

¶ 2. Husband and wife, who were forty-three and forty-one years of age, respectively, when the final divorce order was issued, were married in August 1989 and separated in July 2008. They had two children, now both independent adults, the youngest having graduated from high school in 2008, shortly before the parties separated. During the marriage, the parties lived rent-free in a home owned by husband's father. At the time of the parties' divorce, the only significant marital asset was husband's military pension.

¶ 3. When the parties were first married, husband worked as an Army National Guard recruiter. He left active duty in 1994 but stayed in the reserves while he worked full-time for his father's business. In 2001, he entered active duty again and deployed to Iraq. Husband remained in the Army following his deployment and is eligible for full-time retirement at age forty-five in March 2013, at which time he would be entitled to 50% of the average of his last three years of base pay. Given husband's recent base-pay salary between $78,000 and $83,000, which does not include a substantial housing subsidy and other significant benefits, the court estimated that, assuming husband retired as expected in 2013, he would earn around $41,595 annually, or $3466 monthly, before taxes.

¶ 4. Wife stayed at home for much of the marriage but at times worked in minimum-wage jobs, often on a part-time basis. Over the years, she struggled with alcohol and mental-health issues, at one point having to be hospitalized for depression. At the time of the final divorce hearing, she was netting approximately $1040 a month after taxes while working thirty-two hours per week at a grocery store.

¶ 5. Following an evidentiary hearing, the trial court granted the parties a divorce and awarded wife: (1) as her share of the marital property, 75% of the marital component of husband's pension—which generates approximately $1444 per month or roughly 41.67% of husband's total monthly pension payment; (2) maintenance in the amount of $1900 to $2100 per month for years 2011 to 2013 and $500 per month permanently thereafter, subject to an inflation adjustment; and (3) $2500 in attorney's fees. Husband appeals, arguing that the court abused its discretion by awarding wife 75% of the marital component of the pension and permanent maintenance. Husband also argues that the court erred by ordering an automatic adjustment of maintenance for inflation based upon an arbitrary formula that did not take into account his income.

¶ 6. Before we turn to the specific points husband raises on appeal, a general observation is in order. Husband has made separate arguments about the provisions of the family court order dealing with the division of marital property and the award of maintenance. Although we are mindful that normally “considerations justifying a property settlement are different from those grounding maintenance awards, and they must not be confused in the final

[44 A.3d 766]

analysis,” Jenike v. Jenike, 2004 VT 83, ¶ 10, 177 Vt. 502, 857 A.2d 798 (mem.), this case represents at least a partial exception to that general rule. Here, the only property at issue is husband's military pension, which provides an income stream after retirement. For that reason, its primary purpose is the same as an award of maintenance. “Pension income is therefore ‘always an important factor in determining whether alimony should be paid and how much either spouse should receive.’ ” Mayville v. Mayville, 2010 VT 94, ¶ 11, 189 Vt. 1, 12 A.3d 500 (quoting G. Blumberg, Marital Property Treatment of Pensions, Disability Pay, Workers' Compensation, and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 UCLA L.Rev. 1250, 1264 n. 60 (1986)). Our property award statute allows consideration of whether the property award is “in lieu of or in addition to maintenance.” 15 V.S.A. § 751(b)(7). Our maintenance award statute allows an award of maintenance if the recipient spouse “lacks sufficient income, property, or both, including property apportioned in accordance with section 751 of this title, to provide for his or her reasonable needs” and, in determining the amount and duration of maintenance, authorizes consideration of “the property apportioned to the party.” Id. § 752(a)(1), (b)(1).

¶ 7. In this case, the court made a combined property and maintenance award that provided wife with an income stream of essentially the same amount per month from the date of the divorce and indefinitely thereafter. The court did this by providing the full monthly amount through maintenance until the anticipated date of husband's retirement and thereafter through retirement pension income supplemented by a small amount of maintenance. Although we have analyzed elements of the awards in response to husband's arguments, we conclude that we should view the awards as a package rather than focusing exclusively on the components as husband argues.1

¶ 8. Turning first to the court's property award, husband argues that the court abused its discretion by awarding 75% of the marital estate based solely on the disparity in the parties' financial circumstances, to the exclusion of other relevant factors, particularly the parties' respective contributions to the marriage and the parties' respective merits, both of which heavily favored him. In making this argument, husband particularly challenges the court's finding that wife's role as a homemaker was a mutual decision.

¶ 9. Both sides agree that, although she had brief periods of outside employment, wife's contribution to the marriage was mainly as a homemaker. The testimony was disputed, however, with regards to the significance of her contributions in this role. Husband testified that he and wife shared domestic duties for the first few years, but that, as her emotional problems became worse, he took on more of that role. Wife, however, testified that while husband worked or was away on recruiting assignments or being deployed, she was at home caring for the children. She stated that she did the cleaning, cooking, and shopping for husband and the children. In the end, the court determined that wife's “ ‘nonmonetary contribution ... as a homemaker’ was questionable.” (quoting 15 V.S.A. § 751(b)(11)). In contrast, the court recognized that husband had been the primary source of the family's income during the marriage and that he had carried

[44 A.3d 767]

much of the weight and responsibility to keep the family intact and functioning until the children reached adulthood. For these reasons, the court explicitly concluded that the respective contributions of the parties fell on husband's “side of the ledger.”

¶ 10. Husband nevertheless argues that the court erred in finding the wife's role as homemaker to have been the result of a mutual decision by the parties. Strictly speaking, this is not a dispute about wife's relative contribution to the marriage under § 751(b)(11). As already discussed, wife's contribution was as a homemaker—whether this was a mutual or unilateral decision—and the court found her contribution to be less substantial than husband's. Instead, the dispute goes to whether wife's failure to contribute was attributable to her alone or to both parties. This is a question of the respective merits of the parties under § 751(b)(12). Husband's argument is not only that wife did not, in her role as homemaker, contribute as much as he did, but also that her ineffective role was ultimately her fault.

¶ 11. The court, however, concluded that joint decisions or inaction led to wife's lack of outside employment. The court acknowledged husband's testimony that he wanted wife to work during the marriage. Nevertheless, the court found that it was more likely than not that wife's lack of employment during the marriage “was essentially a mutual choice, by default and inaction as much as any positive decision.” While recognizing that wife did not fit the homemaker role well, the court found that “it was essentially the parties' choice (by attrition, if not positive decision) that [wife] would for the most part be a ‘stay-at-home mom’ when the children were younger.” These findings represent a judgment that husband at least tacitly accepted wife's role and cannot now use it to obtain a greater share of the marital property.

¶ 12. Upon review of the record, we conclude that the court's findings on this point have support in the record. See Solsaa v. Solsaa, 2008 VT 138, ¶ 6, 185 Vt. 587, 969 A.2d 116 (mem.) (noting that trial court findings are viewed in light most favorable to prevailing party, disregarding modifying evidence, and will be upheld unless they are clearly erroneous). Husband testified that he and wife discussed on several occasions “the advantages to her staying home with the children, as well as the advantages of her working to improve our financial situation.” He stated that he “strongly supported ... any efforts by her to ... seek employment,” but that she was “[o]pposed to it.” When asked on cross-examination whether husband encouraged her to work, wife stated, “I guess you could say that.” She elaborated, however, that husband supported her decision and left it up to her to decide what to do. Given this testimony and the evidence concerning wife's...

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